The General Principles of the Civil Law of People's Republic of China (PRC) and Article 100 of the Civil Law of People's Republic of China (PRC) stipulate that citizens have the right to portrait and may not use their portraits for profit without their consent.
Article 120 of the General Principles of the Civil Law of People's Republic of China (PRC) stipulates that if a citizen's right to name, portrait, reputation and honor is infringed, he has the right to demand that the infringement be stopped, his reputation be restored, the influence be eliminated, an apology be made, and compensation be paid.
First, what is "portrait right".
"Portrait" has different understandings from different angles. Portrait (or photography) in the artistic sense refers to an ornamental modeling work that makes the image of the portrait owner reappear under the material carrier through artistic means such as painting and photography.
The right of portrait in the legal sense includes the personal interests enjoyed by the owner of portrait based on his portrait. Generally has the following legal characteristics:
1. Portrait is an artistic expression of the appearance of a natural person.
Usually, when we judge whether the external image of a character constitutes a portrait, we should look at it in combination with its shape and position.
First of all, characters should have portrait characteristics. First, its manifestation is to reflect the image of a specific citizen through photography; Second, the portrait must also reflect the main characteristics of a specific citizen, such as posture, appearance, expression, etc. Third, the portrait must be true and controversial, and celebrities can know whose portrait it is at a glance.
Secondly, it must be the fact of a concrete portrait of a citizen. In the picture, the citizen portrait should occupy a prominent position in the whole image and be represented as a specific object, not as a foil; At the same time, the purpose is not to achieve the goal through the use of portraits.
2. Portrait has the property of things.
Portrait is an artistic representation, which should be fixed on a specific material carrier (such as photographic paper, TV screen, newspapers and magazines, etc.). ) specifically and independently. It is an objective visual image derived from and independent of the portrait owner, which can be dominated, controlled and disposed of by people and has certain property interests.
3. Portrait is the object of portrait right, which shows the unique personality interests of natural persons.
The so-called "property interests" do not come from the physical characteristics of natural persons themselves, but from the personality interests generated by portraits, which reflect different needs of personality interests. The legal protection of natural person's portrait right is actually the need to protect personality interests.
The so-called "portrait right" is a kind of personality right exclusive to natural persons. The legal significance is: the inviolable exclusive right of natural persons to copy their images (portraits) on objective material carriers through plastic arts or other forms.
The personal interests of citizens reflected in their portraits are the protection objects of portrait rights in our laws. It includes spiritual interests and property interests based on the personality interests embodied in portraits.
Characterized in that:
1. The subject of portrait right can only be a natural person. Only natural people have the right to portrait and the right to portrait. Legal persons or other social organizations do not have the right to portrait because there is no objective "portrait" that can independently reflect their appearance. The "corporate image" of a legal person does not refer to a person's portrait, but refers to the comprehensive situation and social evaluation of the legal person's operation, scale, management, benefit, reputation and product quality. )
2. Portrait right also has a kind of property interest, which is derived from the personality interest of the portrait right holder. It allows the portrait owner to transfer the portrait right to a certain extent, and allows others to make and use their own portraits, and get the due use value from them.
3. Portrait right is also a marked personality right, which is grassroots. The basic function is to identify personality by appearance and image, so as to identify every specific natural person. (And the right to name is to identify personality through written symbols).
The content of portrait right:
1, exclusive right of portrait production
As far as photography is concerned, it is the whole process of fixing the appearance image of a natural person on film, photographic paper or other material carriers through photography and transforming the image of a natural person into a portrait.
The exclusive right to make portraits includes: first, the portrait owner can decide to make his own portrait or let others make his own portrait according to his own needs or the needs of others and society, and no one can interfere; Second, the portrait owner has the right to prohibit others from making their own portraits without their consent or authorization. Illegally making portraits of others constitutes infringement.
When we understand the "portrait right", we often think that as long as the portrait of the portrait owner is not open, it does not constitute infringement, which is a misunderstanding of the law. Strictly speaking, it should be understood that whether the exclusive right to make portraits is infringing depends on whether the producer has obtained the permission of the portrait owner when making them. If it is produced without permission-even for the purpose of possession, it will not infringe on the direct interests of the portrait holder, so it also constitutes an infringement of the exclusive right to portrait production. As far as the photographer is concerned, as long as you aim the camera at a natural person to take a portrait, if the portrait owner disagrees, it is infringement.
2. The exclusive right to use the portrait right
Once a portrait is fixed on a material carrier, it is independent of the world and can be dominated and used by people. Although the use value of portrait is of universal significance, only the owner of portrait can enjoy its exclusive right. Its basic content is:
First, natural persons have the right to use their portraits in any way, and obtain spiritual satisfaction and property benefits through their use, and others shall not interfere (but shall not violate the law and public order and good customs). Second, natural persons have the right to allow others to use their portraits and decide to get paid for them (this requires equal consultation with the users and signing a portrait use contract). Third, natural persons have the right to prohibit others from illegally using their portraits.
3. The right to protect the interests of portraits
Portrait interests are the exclusive personal interests of citizens, and no one else may interfere or infringe upon them. The contents are as follows: first, citizens have the right to prohibit others from making their own portraits without their permission; Second, citizens have the right to prohibit others from using their portraits without permission; Third, citizens have the right to forbid others to damage, defile, vilify or distort their portraits.
The general principles are: the right of citizens to copy their own image-the right to agree or disagree to copy their own image in objective material media and space; Citizens have the right to use their own portraits, to allow others to use their own portraits, and to prohibit others from using their own portraits.
Civil Liability for Infringement of Portrait Rights
There are certain principles to determine that the right to portrait has been violated. According to China's General Principles of Civil Law, as long as these three requirements are met, civil liability that constitutes infringement of portrait rights can be identified: First, the occurrence of damage facts. Rube
Civil Liability for Infringement of Portrait Rights
There are certain principles to determine that the right to portrait has been violated. According to China's General Principles of Civil Law, as long as these three requirements are met, civil liability that constitutes infringement of portrait rights can be identified: First, the occurrence of damage facts. For example, after the victim's portrait right is infringed, the victim's reputation, status and identity are hit, which brings mental pain, mainly reflected in the fact that the possibility of the portrait owner obtaining property benefits from his portrait is reduced, including direct losses and indirect losses, including mental damage and material damage. 2. The infringer is subjectively at fault (including intention and negligence). That is, if there are acts prohibited by laws and regulations in photography activities and illegally infringe on the portrait rights of others, it can be considered that there is a fault. 3. There is a causal relationship between the damage facts and the tort. This causal relationship must be an inherent, essential and inevitable connection between the photographer's behavior and the damage result.
Strictly speaking, in photography activities, as long as there is one of the following circumstances, it can be considered as infringement of the portrait rights of others.
1. The act of using the portrait right without the consent of the portrait right holder and without hindrance.
The act of using a portrait without the consent of the portrait owner is also called "improper use of another person's portrait". The legal provisions on the right of portrait in China's civil law are basically aimed at "improper use" of the right of portrait. This improper use can be divided into "for profit" and "for non-profit" illegal use. We can't think that as long as it's not for profit, or with the consent of the portrait owner, we can use the portrait of a citizen at will without making a profit. This understanding is one-sided. Article 100 of China's General Principles of Civil Law stipulates: "Citizens have the right to portrait, and their portraits shall not be used for profit without their consent." Article 139 of "Opinions of the Supreme People's Court on Several Issues of Implementation (Trial)" defines this kind of infringement as "making advertisements, trademarks, decorating windows, etc. with citizen portraits for profit." . Article 120 stipulates: "If a citizen's right to name, portrait and reputation is damaged, he has the right to demand to stop the infringement, restore his reputation, eliminate the influence, make an apology and claim compensation for the losses."
In the non-profit use of other people's portraits without their consent, only the behavior with the reason to stop the infringement is legal. Such as news reports, "wanted orders" issued by public security organs to arrest criminal suspects, and so on.
Portrait right, like name right, is an exclusive right. The possession, use and disposal of personal portraits can only be owned by citizens themselves, and no one else can enjoy them without their consent. The act of infringing on the right of portrait is not to use the portrait of a citizen for profit, but to disrespect the exclusive right of a citizen to his portrait. Therefore, for whatever purpose, reproduction, dissemination, exhibition, etc. Citizens' right to portrait should be recognized by citizens, otherwise it will constitute an infringement of the right to portrait.
2. Making portraits of others without authorization (including having photos of others). The act of creating and possessing portraits (photos) of others without my consent. For a photographer, it is the act of taking pictures of others.
Portrait is the external expression of citizen's "personality", and only I have the right to decide whether to reproduce my image. Whether portrait works are made (filmed) for public publication or possession does not affect the composition of infringement of portrait rights. In other words, although it is not used publicly, it also constitutes infringement, such as the photo studio printing the customer's photos privately for preservation.
Third, maliciously insult and vilify the portraits of others. That is, the actor maliciously insults, vilifies, defiles, damages or destroys the integrity of other people's portraits. Including altering, distorting, burning, tearing up or hanging upside down other people's photos, this kind of behavior not only constitutes an infringement of the right of portrait, but also often constitutes an infringement of the right of reputation.
To sum up, in photography practice, there are three situations that often constitute infringement of portrait rights:
In recent years, there seem to be more and more reports of so-called infringement of "portrait right". Why? I think there are many reasons, but in the final analysis, there may be three: first, photographers don't understand the law; Second, photographers intentionally infringe on people's portrait rights for the purpose of "making profits"; Third, the photographer does not understand the legal significance of the right to portrait. As long as he sees his portrait in the newspaper, he will sue for compensation.
1, "for profit" must meet two conditions at the same time: first, use the portrait of others without my consent; Second, the profit-making behavior infringes on the portrait rights of others, that is, users subjectively hope to obtain economic benefits by using portraits of others. However, the so-called "profit" is not what we usually understand. As long as there is subjective intention and objective profit-making behavior, whether the actor realizes the profit-making purpose or not, it constitutes a "profit-making" fact.
2. Anyone who infringes on another person's portrait rights (reputation rights and honor rights) in any form shall also bear legal responsibilities: that is, the infringed person has the right to ask the infringer to stop the infringement, restore his reputation, eliminate the influence, apologize and compensate for the losses. Visible, without the permission of the portrait owner, not for the purpose of profit, if it causes actual damage to the portrait owner, such as mental damage to the portrait owner, the user also constitutes tort (portrait right) responsibility. In judicial practice, there are also many cases of defacing, uglifying and distorting citizen portraits for the purpose of not making profits.
From the above, it can be clearly seen that "for profit" is not the only premise and requirement to determine whether there is an infringement of citizens' portrait rights, but only an important plot to determine the size of tort liability.
3. Although the portrait owner agrees to use his portrait works, the users are beyond the scope, area and time limit permitted by the portrait owner. This situation does not need to cause actual damage to the portrait holder, which constitutes tort liability. Of course, this situation generally belongs to the liability for breach of contract.
The way to bear civil liability for infringement of portrait right
In our country, the main way of liability for infringement of portrait right is civil liability. This kind of civil liability includes stopping the infringement, eliminating the influence, apologizing and compensating for the losses. Among them, stopping the infringement, eliminating the influence and apologizing are non-property liability methods, and compensating for losses is property liability methods. In China's judicial practice, the determination of tort liability is generally as follows: First, taking profit as the purpose and taking profit as the compensation standard. That is to say, no matter whether the circumstances are serious or not, whether it is profitable or not, as long as the purpose of illegal use is profit and the owner of the portrait demands compensation, the infringer must bear the liability for compensation. Secondly, for the non-profit infringement of portrait rights, that is to say, the determination of compensation for spiritual interests of infringement of portrait rights is based on "serious circumstances". If the circumstances are minor and have not caused serious consequences, material compensation is generally not awarded.
According to China's legal and judicial practice (mainly the latter), based on certain specific circumstances and social interests, portraits can be used reasonably without the consent of the portrait owner:
Generally speaking, you can't use your own portrait without the consent of the portrait owner, but in some cases, you can still use your own portrait without the consent of the portrait owner, which does not constitute an infringement of the right to portrait, which provides a defense for those who use other people's portraits. These reasons for defense provide users with reasonable conditions for use, which hinders the illegality of using their portraits without the consent of the portrait owner.
Although China has not formulated specific legal provisions in this regard, in judicial practice, it is generally believed that:
1. In order to safeguard national interests and social needs, use portraits of public figures with news value. For example, using portraits to report the deeds of state leaders, political activists and advanced figures.
Public figures, with certain status and news value, are generally celebrities from all walks of life. Their activities often involve all aspects of national politics, economy, social life, culture and entertainment. Therefore, it should be rational to use their portraits to report their deeds. First, in order to safeguard the interests of the country and society, use portraits of public figures. Public figures are people with certain status and news value, usually celebrities from all walks of life. Their activities often involve the politics, economy, social life, culture and entertainment of the country. Therefore, it should be rational to use their portraits to report their deeds, such as presidents, politicians, diplomats, scholars, inventors, writers, artists, actors, athletes and successful industrialists. , there is news. For example, Li, the host of CCTV and a teacher of Public Security University, v. Zhongyuan Wei Pharmaceutical Company for infringement of portrait rights. On July 5, 2000, Li lost the case in the first instance of Fengtai District People's Court. In this case, the photo taken by the plaintiff at Cosway Photography Exhibition appeared in the defendant's advertising album, and the photo was treated as a diluted background. Chen and Li thought that Shanxi Cosway Company had infringed on their portrait rights, so they appealed to the court. After trial, the court held that the COSCO Wei Photography Exhibition, in which Chen and Li took a group photo as a souvenir, was a public welfare social activity. It can be completely disseminated to the public, and the technical treatment on the photos has not affected and distorted the expression of its main content. In addition, the advertising brochure compiled by COSCO Wei Company aims at improving the visibility of the company and shaping a good corporate image, which has no direct profit-making purpose and does not violate relevant national laws and regulations. Every citizen has the right to portrait, but the exercise of the right to portrait should be restricted. Finally, the court ruled that he Li's portrait right had not been violated.
2. Use portraits of people who participated in specific activities on specific occasions. Such as portraits of people attending various gatherings, parades, ceremonies, celebrations and other activities. This kind of activity often has the value of news reporting. The fact that the participants are in it shows that they have given up their portrait rights to a certain extent, and no one can claim their portrait rights when participating in such activities. Portraits formed on these specific occasions should not constitute infringement of portrait rights, but belong to the rational use of portraits.
3. In the photography creation of scenic spots, people are used as decorations, or people are photographed when taking pictures. On these occasions, people are not the main body;
4, in order to exercise the legitimate right of supervision by public opinion (the Constitution stipulates that citizens have the right of supervision), in order to criticize some uncivilized behaviors, in order to condemn the illegal or immoral behavior of the perpetrator, in order to educate the public to abide by the law, respect social morality, and maintain social order. Use citizen portraits to announce their uncivilized behavior. Such as shooting acts of destroying public property and polluting the environment;
5. Use portraits for portrait owners, other natural persons and other social welfare purposes. For example, when I was looking for you in newspapers and TV, I used my photos to find people whose whereabouts were unknown.
6. Portraits of citizens used as evidence (in criminal or civil proceedings) in litigation activities; State organs use portraits of citizens in order to perform official duties. For example, public security organs use their portraits to make wanted orders to hunt down fugitives or other criminal suspects.
7, the state organs to implement and apply the law (such as in the process of administrative law enforcement) and the use of citizen portraits;
8, for the purpose of scientific research and cultural education in a certain range using other people's portraits (mainly refers to the public scope), such as for the purpose of clinical medical teaching and scientific research, and in specific occasions or professional newspapers and periodicals to show patients' photos, etc. Use citizen portraits.
Therefore, I personally think that the following aspects should be paid attention to when using citizen portraits at present:
First, correctly understand the difference between "illustrations and pictures" in the article and news photos and photographic reports.
Second, standardize the picture description text. (such as the name of the work, etc. )
Third, don't trust the "verbal agreement".
Fourth, be careful with pictures on magazine covers.
Five, when submitting (newspapers and magazines, all kinds of film competitions), we should pay attention to the back of the text, plus the authorized use of the work restrictions.
Six, to participate in various photography activities to hire models, we should pay attention to the agreement between the organizer and the model.
Seven, the key is to obtain the written consent of the portrait right holder.
Although the law defines the infringement of citizens' portrait rights, with the development of China's market economy, especially after China's entry into WTO, the use (scope) of photographic works is increasingly affected by "interests", especially the infiltration of economic factors. Therefore, generally speaking, the legal protection of portrait right in China is still relatively principled. For example, how to define "for-profit" and whether the pictures in the news media belong to for-profit; Portrait rights of public figures, especially politicians and entertainers; Definition of the right to use the portrait of the deceased. When we deal with photographic portraits, the problems we encounter are often very specific. So it is very difficult to use these abstract nouns to deal with the specific things we encounter. The hardest thing here is "making a profit". In view of this, as a photographer, when shooting portraits involving people, especially when using them, we should pay more attention to: caution, legality and evidence-these three points are very important. I mean, everyone has the right to portrait. If you want to use other people's portrait rights, you have to get permission from others-this is the safest (so I specially brought several samples of contracts and agreements on "portrait use" and "work agency" today for your reference only).
Some common questions about "portrait right";
1. Does the enterprise have the right to use employee portraits?
The answer is yes: no!
2. Does the portrait right only take care of the "face"?
Don't! Whenever people see a portrait, they always associate it with the personality characteristics of the legal subject being recorded. This personality characteristic is an important resource of human society, and its potential huge commercial value is especially valued by modern commercial society (such as the recent TCL mobile phone advertisement and the invited Korean actress). )
The visual images of other obvious body parts will also remind people of the recorded legal subject and the personality characteristics of the legal subject. Therefore, the vision of other body parts with obvious characteristics also belongs to portrait, and it is also within the protection scope of portrait right.
Whether it constitutes a "portrait" is centered on the positive face of a natural person, and it also tests the cognitive level of ordinary people in society and makes a comprehensive judgment. It can be seen that it can be judged, but if the profile or other parts are shown, people who are generally familiar with it can already judge who they represent, then the profile or other parts also constitute a "portrait".
3. Does the group photo have the problem of portrait right?
Yes As we all know, the personality right of the portrait owner of a personal portrait exists independently. Once infringed, the portrait owner can claim his rights from the infringer according to law. However, the portrait right of collective portrait has its own characteristics. Collective portrait is a collection of independent portraits of all rights holders, which has the characteristics of unity of independence and identity. First, all portrait owners enjoy independent personality rights in photos; On the other hand, in physics, collective portraits are inseparable (everyone has the right to claim rights independently).
Judging from the current judicial practice, it is generally: if the user maliciously destroys, pollutes or vilifies a specific person in a collective portrait, the proportion of personality rights of this specific person is enough to cover all portrait rights holders, and obviously his portrait has been infringed.
Secondly, when judging whether the use of collective portraits violates the portrait rights of specific individuals in collective portraits, does the user use them for profit or for business? Should be a basic basis.
It can be seen that the legal protection of group portraits is lower than that of individual portraits, that is to say, the right of individual portraits in group portraits is restricted to a certain extent, and this restriction is limited to ensuring the rational use of all group photographers. (Only because the existing laws are not perfect)
4. Does taking pictures of others quarreling constitute a violation of portrait rights?
It depends on whether there is a situation that blocks the illegal cause. For example, the clerk quarreled with the customer and had a very bad attitude. In terms of social benefits, this situation violates the professional ethics of salespeople and is also a negative phenomenon in society. Exposing this negative phenomenon is conducive to social progress. Therefore, such an event is undoubtedly a social news, and any citizen has the right to report news, and taking news photos is one of the means of news reporting. Taking photos of this scene belongs to the use of other people's portraits for the public interest and does not constitute an infringement of the salesperson's portrait rights.
However, if two brothers are arguing, so are you. . . Generally speaking, no. . . .
5. Can administrative organs or relevant units "expose" citizen portraits?
For example, a bus stop caught several thieves, but it didn't constitute a crime, so in order to remind passengers, they posted their portraits in the shopping mall and carried out "photo exposure" with the local police station. Seemingly well-intentioned, there are also reasons why the "thief incident" is illegal, but. . . .
Using other people's photos at will, especially posting other people's photos in public places, and causing the negative evaluation of the person by an unspecified majority because of this posting and related text description, will most likely constitute an infringement on the portrait rights of others. The above-mentioned "thief incident" can only be solved through legal channels and procedures. Even if it is a crime, it can only be declared by the people's court in accordance with legal procedures and regulations.
According to the provisions of the Administrative Punishment Law, the types and extent of administrative punishment can only be set by laws, regulations and departmental rules, and other normative documents may not set administrative punishment. There is a principle here: as far as administrative organs are concerned, government organs cannot do it without legal authorization; As far as citizens are concerned, citizens can do something for them as long as there is nothing prohibited by law.
So we have searched all the laws, regulations and rules, and we can't find that public security organs can punish citizens by posting photos publicly. Therefore, the behavior of the police station belongs to arbitrary infringement.
6. How long is the victim's protection period after knowing that he has been "infringed"?
I remember there is a famous photo, which is "Smell after Bankruptcy" (news photo). The caption of the photo reads: "Shi Yongjie, the former director of Shenyang Explosion-proof Equipment Factory, is smoking a stuffy cigarette." The photo was taken at 1986 and published in China Youth Daily, which once caused a sensation in the whole country. Later, this photo often appeared in newspapers and other media. 1April, 999, Shi Yongjie sued the author and related media, arguing that the report actually demeaned and vilified the plaintiff and infringed the plaintiff's right to portrait and reputation.
According to China's General Principles of Civil Law, the limitation of action for requesting protection of civil rights from the people's court is two years. That is to say, if the obligee knows or should know that his rights have been infringed and fails to bring a lawsuit to the people's court within two years, the obligee no longer enjoys the right to ask the people's court for protection. In other words, the obligee's right to win the case is extinguished. Therefore, in fact, Shi Yongjie's lawsuit has exceeded the statute of limitations prescribed by law and has no right to win.
7, the principle of good faith!
I remember that in People's Photography, an author wrote an article "A Way to Deal with Disputes over Portrait Rights", explaining how to obtain the secret of the so-called "power of attorney" of the portrait right holder. That is, after taking photos of the subject, the subject is required to leave his name and address on a piece of white paper and send the enlarged photos to the subject. In fact, the other side of the white paper is a hinge with a statement of consent. This practice is really not desirable!
China's "General Principles of Civil Law" and "Contract Law" both stipulate "invalid civil acts". For example, Article 52 of the Contract Law stipulates that a contract concluded by the parties through fraud or coercion is regarded as invalid.
At the same time, China's General Principles of Civil Law also stipulates corresponding principles, one of which is "voluntariness, fairness, equal compensation, honesty and credit", and the principle of "honesty and credit" is called "emperor clause", which means: First, civil servants should exercise their rights and perform their obligations in good faith, and must not abuse their rights, harm the interests of others or violate the interests of the country or the country. Second, the interpretation of the contract should be based on honesty and credit. That is, when the court or arbitration institution interprets the contract, it should judge right and wrong and determine the responsibility according to the principle of good faith. The third is to make up for the lack of legal provisions with the principle of good faith. What is important is that on the last point, the principle of "honesty and credit" gives judicial personnel certain discretion! So people call it the imperial clause. In other words, the principle of good faith can explain and fill the law when there are loopholes in the law.
So, don't be smart, know that "cleverness is mistaken by cleverness."